CONCURRING OPINION OF JUDGE COSTA

(Translation)

In this case the Court applied Article 37 § 1 (c) of the Convention, which enables it to consider that “for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

It accordingly struck the application out of its list of cases, but not because the applicant did not intend to pursue his application (Article 37 § 1 (a)) or because the matter had been resolved (Article 37 § 1 (b)) or, lastly, because a friendly settlement had been reached (Article 39).

The majority based their decision on the following reasoning: the terms of the Turkish Government's unilateral declaration, which the Court carefully examined, enabled it to reach that conclusion on the basis of the nature of the admissions contained in the declaration and the scope and extent of the various undertakings referred to therein, together with the amount of compensation proposed. Moreover, since the declaration specified the nature and extent of the obligations incumbent on the respondent Government in the event of violations such as those which have been alleged, the Court was satisfied that respect for the human rights guaranteed by the Convention and its Protocols does not require it to continue the examination of the applications under Article 37 § 1 in fine .

I come close to sharing the views expressed by my colleague, Judge Loucaides , in his dissenting opinion. In my view, striking out applications “for any other reason” is similar to what is sometimes called, in French administrative proceedings, discontinuation for the sake of expediency or convenience ( non-lieu expédient ou de commodité ). It must not therefore be abused. The Court usually has recourse to it in narrowly defined cases, such as where the applicant dies and the proceedings are not continued by his heirs (see Gladkowski v. Poland , judgment of 14 March 2000) or where proceedings are taken over by a legal entity which does not, in that particular case, have a legitimate interest allowing it to pursue the proceedings (see S.G. v. France , judgment of 18 September 2001). However, in the circumstances of the present case, and without calling into question the good faith and sincerity of the respondent State, I am very concerned by the unilateral nature of its undertakings. I also have some difficulty in fully reconciling the precedent thus established with that relating to loss of victim status which presupposes that the State acknowledges the violations and then fully compensates them (see, for example, the L ü di v. Switzerland judgment of 15 June 1992, Series A no. 238).

I have, however, voted with my colleagues in the majority in order to avoid breaking ranks. These two cases are identical to those arising out of the Akman v. Turkey and Aydın v. Turkey applications, which were dealt with in an identical fashion. The judgments , voted unanimously, are dated 26 June and 10 July 2001. I wished to express a number of reservations, however, which are of a general rather than a specific nature.

DISSENTING OPINION OF JUDGE LOUCAIDES

I disagree with the decision of the majority to strike the application out of the list in accordance with Article 37 § 1 (c) of the Convention.

The decision of the majority was based on the declaration by the respondent Government, the terms of which are set out verbatim in paragraphs 29 and 30 of the judgment . Through that declaration, the respondent Government offer to pay “ ex gratia to the applicant Mr Toğcu the amount of 70,000 pounds sterling [...] [in respect of] the application registered under no. 27601/95.” According to the same declaration this amount will be payable within three months from the date of delivery of the judgment by the Court and will constitute the final resolution of the case. The Government declare that “it is accepted that unrecorded deprivations of liberty and insufficient investigations into allegations of disappearance, such as in the present case, constitute violations of Articles 2, 5 and 13 of the Convention”. However, the Government do not accept any responsibility for the violation complained of and do not undertake to carry out any investigation in respect of the disappearance of the applicant's son, which was the subject-matter of the application. Instead, the Government undertake in the declaration generally “to issue appropriate instructions and adopt all necessary measures with a view to ensuring that all deprivations of liberty are fully and accurately recorded by the authorities and that effective investigations into alleged disappearances are carried out in accordance with their obligations under the Convention”. However such an “undertaking” does not add anything to the already existing obligation of the respondent Government under the Convention. The Government conclude with the following perplexing sentence:

“The Government consider that the supervision by the Committee of Ministers of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will be made in this context.”

This sentence is perplexing, in my opinion, because it seems to imply that the Government consider the Committee of Ministers as a more appropriate mechanism for ensuring improvements in cases like the one in respect of which the declaration is made (“in this and similar cases”) than an examination of “this and similar” cases by the Court. The sentence signifies a preference for a political organ rather than a judicial one. In this respect it may be useful to point out that this political organ has until now been showing a noticeable leniency towards breaches of the Convention by the respondent Government. It is sufficient to mention only the fact that a

substantial number of judgments of the Court against the respondent Government, of which the Committee of Ministers are obliged under the Convention to supervise execution, remain unexecuted in circumstances that imply at least a certain tolerance and an ineffective monitoring on the part of the Committee of Ministers. It is this organ that the respondent Government consider “appropriate” for ensuring improvements in respect of the investigations into alleged disappearances of persons “such as in the present case”.

In the circumstances, the applicant's request to the Court, as set out in paragraph 31 of the judgment , to reject the Government's proposals is understandable. We are therefore dealing with a request for striking the case out of the list on the basis of a unilateral declaration of the Government which has been rejected by the applicant for reasons that I personally find reasonable.

The Court examined the matter under Article 37 § 1 (c) and decided to strike the case out of its list on the ground that “ it is no longer justified to continue the examination of the application ”, having found at the same time that respect for human rights does not require the examination of the application. I find it useful to repeat here the main part of the reasoning of the Court (paragraphs 36 and 37 above):

“The Court has examined carefully the terms of the respondent Government's declaration. Having regard to the nature of the admissions contained in the declaration as well as the scope and extent of the various undertakings referred to therein, together with the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

Moreover, the Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ). The Court notes in this regard that it has specified the nature and extent of the obligations which arise under the Convention for the respondent Government in cases of alleged disappearances...”.

The Court was influenced by

(a) the nature of the admissions contained in the declaration;

(b) the scope and extent of the various undertakings referred to in the declaration; and

(c) the amount of compensation proposed.

As regards (a) it has already been pointed out that the Government do not admit any responsibility.

As regards (b) it has already been pointed out that the Government give no undertaking to investigate the alleged disappearance in this case.

As regards (c) this concerns an offer of compensation which is not accepted by the other side, it was not determined by the Court and, more importantly, it cannot rectify a violation in a situation where the State has not taken reasonable measures to give an effective remedy in respect of the relevant complaint through an appropriate investigation (cf. Donnelly and six others v. the United Kingdom, DR 4, at p. 78).

It is submitted that, in the circumstances of the case, the Court's conclusion is not convincingly reasoned. On the contrary, I fear that the solution adopted may encourage a practice by States - especially those facing serious or numerous applications - of “buying off” complaints for violations of human rights through the payment of ex gratia compensation, without admitting any responsibility and without any adverse publicity, such payments being simply accompanied by a general undertaking to adopt measures for preventing situations like those complained of, from arising in the future on the basis of unilateral declarations which are approved by the Court even though they are unacceptable to the complainants. This practice will inevitably undermine the effectiveness of the judicial system of condemning publicly violations of human rights through legally binding judgments and, as a consequence, it will reduce substantially the required pressure on those Governments that are violating human rights.

It is true that a solution similar to the one applied in the present case was adopted for the first time on 26 June 2001 in the case of Akman v. Turkey and was followed on 10 July 2001 in the case of Aydın v. Turkey. However, I believe that those cases do not constitute an insurmountable obstacle in the form of a well-established precedent of case-law that would prevent a different solution. I base this opinion on the following:

(a) Those cases do not establish any principle of law; they do not even decide the merits of the case; they only concern procedural decisions.

(b) Those cases can be distinguished from the present one. The case of Akman concerned an alleged instantaneous violation, i.e. murder, while the present case concerns an alleged continuing violation, i.e. disappearance of a person. The Aydın case concerned a disappearance of a person in respect of which an investigation was still being pursued at the time of the decision of the Court to strike the case out of the list.

(c) Departure from both decisions is justified for cogent reasons [2] , namely to ensure more effective implementation of the obligations of the High Contracting Parties to the Convention through ceasing to strike cases out as a result of approving the method of compensation proposed by the respondent States on the basis of unilateral declarations unacceptable to the latter, like the one in the present case.

[1] A phrase generally used for indicating that a person has joined PKK forces hiding in the mountainous areas in south-east Turkey.

[2] In this respect see the article of Mr Luzius Wildhaber , now President of the European Court of Human Rights, “Precedent in the European Court of Human Rights” in the studies in memory of Rolv Ryssdal “Protecting Human Rights: the European Perspective”, pp. 1529-1545 at pp. 1530-1531 (2000).